Third country cooperation in the EU New Pact on Migration and Asylum
By Annick Pijnenburg and Lynn Hillary
One of the aims of the EU New Pact on Migration and Asylum (hereafter: Pact) is to reduce unsafe and irregular migration routes. In that respect, the European Commission rightly notes that the internal and external dimension of migration are inextricably linked. It is therefore unsurprising that cooperation with third countries forms an important element of the new proposals that constitute the Pact. Section 6 of the Commission’s Communication, which is titled ‘Working with our international partners’, covers almost a third of the total document. Indeed, while the Pact is a compromise regarding the Common European Asylum System (hereafter: CEAS), i.e. the internal dimension of migration, this is not completely true for the Pact’s elements on cooperation with third countries, and externalisation more generally. Here, the Member States of the EU seem to be very much in unison. It has been argued this is the case because external migration management is focused on deterrence, thereby decreasing the number of migrants that any Member State is responsible for. In other words, if the CEAS were a well-functioning system, there would be no need to rely as heavily on externalisation as is the case in the current proposals.
The Commission’s Communication identifies six aspects of cooperation with partner States outside the EU, many of which are in line with developments in recent years. Firstly, the Pact aims to maximise the impact of the EU’s international partnerships. This means that migration should be built into all third country cooperation as a core issue, echoing the 2016 Migration Partnership Framework. The latter is an implementation mechanism of the EU Agenda on Migration which focuses on intensified cooperation through partnerships with third countries to manage migration flows to the EU. Secondly, the Commission foresees protecting those in need and supporting host countries. In other words, the EU will continue to provide support to third countries that host many refugees and displaced persons. The third aspect focuses on building economic opportunity and addressing the root causes of irregular migration. The Commission will thus factor in migration as a priority in its proposals for the next generation of external policy instruments. Yet this risks conflating development cooperation with migration management, whereas development aid should be targeted towards countries where aid is most needed, not solely towards countries that are important partners for migration control purposes – as seems to be the aim in the proposals. This also reflects the current trend towards increasingly conditioning development aid on migration control.
Fourthly, the Pact stresses the importance of strengthening migration governance and migration management through partnerships, amongst others by supporting capacity-building in third countries. However, this risks leading to more human rights violations, both of migrants and of the local population in partner countries. This will be especially true if the EU continues to cooperate with governments with a poor human rights record, as noted elsewhere.
The fifth element of externalisation concerns readmission and reintegration. Here also, conditionality plays an important role: third countries that refuse to cooperate are ‘punished’ – so to speak – by way of visa restrictions, thereby restricting the possibilities of short-term migration to Europe. Partner States that cooperate to the EU’s satisfaction, on the contrary, can be ‘rewarded’ with visa liberalisation. Issues surrounding cooperation on return are further discussed here [see blog post by Mariana Gkliati] under the same series on this blog.
The Pact’s sixth and last element of externalisation includes legal pathways to Europe, which is discussed in more detail in a future blog post by Tihomir Sabchev.
In conclusion, it is remarkable how much the current proposals on the external dimension of migration resemble the Migration Partnership Framework. The proposals on the external dimension of migration, more specifically third country cooperation, are not specific enough to map all human rights violations this could bring about. However, it is to be expected that the problematic aspects of the current policies will also exist under the EU New Pact on Migration and Asylum. These include human rights violations such as deaths, refoulement, torture and inhuman and degrading living and detention conditions in countries such as Libya, as well as the lack of responsibility and accountability mechanisms under EU law.
Annick Pijnenburg is a lecturer in international and European law at Radboud University Nijmegen. She recently finished her doctoral research in which she examined State responsibility for human rights violations in the context of migration deals.
Lynn Hillary is a PhD Candidate at the Open University of the Netherlands. Her PhD research concerns the principle of mutual trust and external European asylum law.